MATHONSI J: The late
doctor John Joseph Manolakakis was a Greek medical doctor practicing medicine
in Zimbabwe. He died on 2 July 2006 in
Bulawayo, Zimbabwe at the age of 72 leaving behind flats number 1703 and 1704
Kenilworth Towers, Ascot, Bulawayo and some household furniture and personal
effects according to the inventory submitted upon registration of his estate as
DRB 611/06.
The late doctor did not leave behind
any children and is survived by his mother, the respondent in this application.
It would appear that at the time of his death he had a “living in partner”,
Evangelia Patrinos (nee Ktistakis), the mother of Ioannis Ioannidis and Constandinos
Patrinos, who are cited in this application as 4th and 5th
applicants.
Evangelia Patrinos also died on 8
March 2008 in Greece at the age of 62 and is survived by the 4th and
5th applicants. Her estate,
DRB 587/08 is cited in these proceedings as 3rd applicant while that
of the late Dr Manolakakis is 2nd applicant. According to the inventory submitted in DRB
587/08, Evangelia Patrinos' estate has no assets in Zimbabwe at all except the
claim to the estate of Dr Manolakakis and her death records show that she was a
Greek national as well.
4th and 5th
applicants are also foreign nationals currently based in Athens, Greece and
Lincolnshire, England respectively.
Clearly therefore 3rd, 4th and 5th
applicants are, for all intents and purposes peregrini and not incola
applicants at all.
In case number HC 2226/08 the
respondent, who herself is a peregrinus
based in Greece, brought an action against the applicants seeking the
nullification of a will purportedly drawn by the late Dr Manolakakis. In that action the plaintiff, who is
respondent in the present application, alleges that the said will was drafted
by Evangelia Patrinos who went on to forge the erstwhile doctor's
signature. The claim has been contested
and at the pre-trial conference of the parties only one issue was identified
for trial namely, “whether or not plaintiff did comply with the Wills Amendment
Act No. 21/98”
After the matter was referred to
trial, this application was made for an order directing the respondent, as a peregrinus, to pay the sum of US$29
150,00 as security for costs and costs of the application on an attorney and
client scale. The basis of the
application is that the respondent does not have assets in this country as
would provide security for the costs of the applicants in the event of a
successful contestation of her action.
It has been argued on behalf of the
respondent that, while 6 applicants are cited in the application, there is in
actual fact only one applicant who is 1st applicant. Before her death, the late Evangelia Patrinos
was appointed executrix dative in the estate of the late Dr Manolakakis by
letters of administration issued on 23 August 2006. When she died, the 1st applicant
was appointed executor dative of her estate by letters of administration issued
on 9 March 2008.
However, up to now the 6th
applicant has not appointed an executor dative to replace the late Evangelia
Patrinos in the estate of the late Dr Manolakakis. For that reason I agree that the 1st
applicant cannot purport to represent the 2nd applicant, the estate
of the late Dr Manalakakis. He can only
represent the 3rd applicant, the estate of the late Evangelia
Patrinos who was herself a peregrinus
and whose estate has nothing in this country other than the contested claim in the estate late Dr
Manolakakis.
I have already stated that 4th and 5th
applicants are also foreign nationals based in Greece and England. They are therefore not incola. In addition to that,
1st applicant does not purport to make the application on their
behalf. The 1st applicant in
fact states in his founding affidavit that he makes the application in his
capacity as the “director of National Executor and Trust (Pvt) Ltd”. This is not helpful at all because he holds
letters to administer the 3rd applicant's estate in his personal
capacity. He can only bring an
application on behalf of the 3rd applicant.
This is particularly so as none of
the other applicants have given him authority to make the application and they
have not deposed to affidavits in support of the application. It is inconceivable that the 6th
applicant would have given 1st applicant authority to bring this
application on his behalf.
I therefore come to the conclusion
that there are only 2 applicants in this matter, the 1st and 3rd
applicants with the 1st applicant only acting in a representative
capacity as the executor of the 3rd applicant. The merits of the application will be
considered on that basis alone.
The basis of the rule requiring a peregrinus to provide security for the
costs of an incola defendant was set
out by SANDURA JP (as he then was) in Zendera v McDade & Anor 1985 (2) ZLR 18 (H) at 20A-D as follows:
“The issue relating to the furnishing of security for costs
by a plaintiff who is a peregrinus is
discussed by the learned authors of The
Civil Practice of the Superior Courts of South Africa 3rd ed at
p 25. There the learned authors have
this to say:
'A peregrinus who
initiates proceedings in our courts must, as a general rule, give security to
the defendant for his costs, unless he has within the area of jurisdiction of
the court immovable property with a sufficient margin unburdened to satisfy any
costs which may arise.
The presence of immovable property is a defence to a claim
for security, but the doctrine has not been extended to include movable
property.
The court has, however, a discretion to dispense with
security in exceptional cases but should exercise its discretion sparingly.'
The rule requiring a peregrinus
to give security for the defendant's costs was laid down as far back as 1828 in
Witham v Venables (1828) 1 Menz 291 and subsequently explained in Lumden v The Kaffrarian Bank (1884-5) 3 SC 366. The object of the rule is to make sure
that an incola will not suffer any
loss if he is awarded the costs of the proceedings. The rule exists primarily to protect the
interests of an incola who is sued by
a peregrinus.” (The underlining is mine)
It is important to note that the
protection of provision of security for costs is only available to an incola of this country. An incola
is not, as a general rule, required to provide security for costs. Writing about that issue the learned authors
Herbestein and Van Winsen, The Civil
Practice of the Superior Courts in South Africa, 3rd ed at p 251
stated:
“The burden of proving that the respondent is a peregrinus lies on the applicant, i.e.
the defendant, but if it appears that until recently the plaintiff has been an incola of some foreign country, the onus
is on him to show that he has changed his domicile and has become an incola of the Republic. In such a case, it is not sufficient for him
merely to make a statement to the effect that he has changed his domicile but
he should place before the court facts from which it is able to judge of the
reliance to be placed upon his statement. The court will scrutinize such
evidence closely, but if the court is satisfied that there is nothing
improbable in the evidence and that it would not be justified in declining to
accept it, an order for security for costs will be refused even where the
respondent has come to this country for the express purpose of instituting an
action.”
By parity of reason, a party seeking the remedy of security
for costs must satisfy the court that it is incola
before the protection can flow to it.
Clearly such status is not acquired merely by having a claim within
Zimbabwe which claim is the subject of the dispute, no matter how substantial
the property is. Ginsberg v Estate Kulf
1924 SWA 1 at p 2. Incola connotes the element of residence, not temporary residence
but it constitutes domicile in this country.
In Zimbabwe there are no rules
providing for an order for security for costs.
The issue of security for costs arises out of judicial practice. The court however retains the exclusive
discretion to make such order or not to.
In my view in exercising its discretion the court is guided first and
foremost by the provisions of section 18(1) as read with section 18 (9) of the
constitution of Zimbabwe namely that “every person” is entitled to the
protection of the law and to be afforded a fair hearing within a reasonable
time by an impartial tribunal in the determination of the existence or extent
of his civil rights or obligations Zietman
v Electronics 2008 (4) SA 1.
In
casu, virtually all the interested parties, except for the estate of the
late Dr Manolakakis which is effectively not a party to this application, are
foreigners cherishing their domicile elsewhere.
(Voet 2.8.1) They therefore do not have an automatic right
to security for costs in this jurisdiction.
In addition to that, the respondent is an extremely elderly woman who
has not been shown to have sufficient means to pay the costs in question.
The respondent should not be denied
justice by unreasonable obstacles being placed in the way of persons seeking
redress. As stated in G.R.E. Insurance v Chisnall 1981 ZLR 551 at 559H and 560A, the fact that the
respondent has immovable property situated within the country is not the only
ground for refusing to grant security for costs.
I take the view that it would be a
judicious exercise of my discretion not to order security to be paid. Having come to that conclusion, it is not
necessary for me to examine whether the quantum of the costs claimed is
reasonable for purposes of proving the single issue that has been referred to
trial. I have in mind the fact that the
applicants propose to bring witnesses all the way from Greece and South Africa
at very high cost merely to prove that the disputed signature belongs to the
late Dr Manolakakis. On the evidence available
it has not been shown that the proposed costs are reasonable.
In the result, the application is
dismissed with costs to be costs in the main action.
Lazarus & Sarif, applicants' legal practitioners
Sansole & Senda,
respondent's legal practitioners
